Brett Kavanaugh Sure Seems Skeptical of the Texas Abortion Ban

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For the last two months, the Texas abortion ban has let ordinary people sue individuals who break a law that bans abortion as early as six weeks into pregnancy. On Monday, when the Supreme Court heard arguments in two separate challenges to the ban, at least two conservative, Trump-appointed Supreme Court justices seemed to doubt whether it’s a good idea.

The ban, which allows complete strangers to sue anyone who “aids or abets” an illegal abortion—with the potential to win at least $10,000 in damages, plus attorney’s fees, clearly flies in the face of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. 

But since the Texas government isn’t enforcing the law itself, abortion rights supporters have struggled to find a legal avenue to defeat it. Attorneys in the cases heard on Monday, which were respectively brought by Texas abortion providers and President Joe Biden’s Justice Department, accuse Texas of deliberately crafting the law to box the judiciary out of being able to review its constitutionality. While that was the main issue at stake for the abortion providers, the Justice Department was also arguing for its right to sue over the law at all.

The justices agreed to hear both the Justice Department and the abortion providers’ challenges just two weeks ago, making the case the speediest Supreme Court case since Bush v. Gore in 2000.

Justice Amy Coney Barrett, who was appointed by Trump just over a year ago, zeroed in on that issue early on in arguments. She asked Marc Hearron, who represented the abortion providers as senior counsel for the Center for Reproductive Rights, whether the Texas law kept people—even if they’d been sued—from raising a “full constitutional defense.”

Clearly, that’s what Texas was trying to do, Hearron replied. But, he added, “It’s unclear how the Texas courts would apply that.”

Justice Brett Kavanaugh, another Trump pick, seemed struck by the idea that the Texas law could be cloned and used to topple other constitutional rights, like gun ownership. 

“Say everyone who sells an AR-15 is liable for a million dollars” under some state law, Kavanaugh suggested to Judd Stone, the Texas solicitor general, who argued on behalf of the state. Would people be able to sue to block that law from taking effect, Kavanaugh asked, or “would that kind of law be exempt from pre-enforcement review in federal court?” 

Stone kept returning to the same argument: If people want their rights to be more protected, get Congress to do something. 

“For some of those examples, I think it would be quite difficult to get legislation through Congress,” Kavanaugh remarked at one point.

“Isn’t the point of a right that you don’t have to ask Congress?” Justice Elena Kagan, a President Barack Obama nominee, asked shortly afterward.

There were a few other moments of withering wit. At one point, Chief Justice John Roberts, who was nominated by President George W. Bush, asked Stone whether it would matter if, for example, people who sue under the ban could receive $1 million in damages. No, Stone said, reiterating that Texas has not set the damages at $1 million. 

“My question is what we call a hypo,” Roberts replied, using lawyer shorthand for “hypothetical”—a very common technique in law.

The arguments on Monday rarely touched on the reality that abortion access has essentially evaporated in Texas, which is home to one in 10 U.S. women of reproductive age. In the wake of the Texas ban, in-state abortions have fallen by almost 50 percent, according to a study released last week from the University of Texas. At the same time, abortion clinics across the country have reported seeing an influx of Texan patients.

The abortion providers sued over the summer in an attempt to halt the law from ever taking effect. But the Sept. 1 deadline came and went without any action from the Supreme Court. Then, almost 24 hours later, a 5-4 majority of justices announced in a single-paragraph unsigned order that they would not stop it. Although the providers had “raised serious questions regarding the constitutionality of the Texas law,” the majority of justices found there were too many “complex and novel” issues embedded in the case for the justices to rule. 

Justices Roberts, Kagan, Stephen Breyer, and Sonia Sotomayor all dissented. In her opinion, Sotomayor accused the majority of having “opted to bury their heads in the sand” and called the Texas law “flagrantly unconstitutional.”

Shortly after the law took effect, the Justice Department sued Texas, accusing it of enacting the ban “in open defiance of the Constitution.”

In a 113-page opinion issued in early October, U.S. District Judge Robert Pitman sided with the Justice Department and blocked the Texas ban. But that freeze was only temporary: Within a few days, three justices on the 5th U.S. Circuit Court of Appeals, which oversees Texas, put the law back into place and ordered arguments over the law to be “expedited.”

Instead, the Justice Department went to the Supreme Court. “Texas cannot evade the strictures of the Constitution or effective injunctive relief merely by deputizing members of the public to carry out the State’s enforcement of its plainly unconstitutional law,” the Department wrote in one legal brief last week. The law is an “attack on the supremacy of federal law.”

It’s unclear when the justices might rule on these two challenges, or how their rulings may differ or intertwine between the two cases. Even if they wanted to shut down the law, the justices seemed unsure how, exactly, to do so. Barrett at one point asked Elizabeth Prelogar, the U.S. solicitor general, whether the United States was simply seeking a “pile-on injunction.”

Prelogar, who was confirmed just last week, said no. The U.S., she continued later, has a distinct interest in keeping states from engineering laws similar to the Texas ban.

If the law is allowed to stand, Prelogar said, “No constitutional right is safe. No constitutional decision from this court is safe. That would be an intolerable state of affairs and it cannot be the law.”

“The supremacy of federal law cannot be that easily subject to manipulation,” she said.

Despite the Texas-sized impact they may have on abortion access, the Monday challenges are still only a prelude to the arguments set to occur on Dec. 1, when the Supreme Court will hear a case about a 15-week abortion ban out of Mississippi. Under past Supreme Court rulings, states aren’t allowed to totally outlaw abortion before fetal viability—a benchmark that usually occurs at about 24 weeks into pregnancy.

But the Supreme Court has now agreed to consider stripping away that guardrail. Without it, Roe v. Wade could be left gutted.